Bombay High Court
Manikchand Yadav vs Vivekanand Education Soc Thr Chairman ... on 4 March, 2024
Author: Gauri Godse
Bench: Gauri Godse
2024:BHC-AS:14542
26.16431.23 wp.docx
Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 16431 OF 2023
Manikchand Yadav .....Petitioner
Vs.
Vivekanand Education Soc Thr .....Respondents
Chairman and Ors
Mr. Narayan Bubna for the petitioner
Ms. S. S. Bhende, AGP for the State
CORAM : GAURI GODSE, J.
DATE : 4th MARCH 2024
P.C.
1. This petition takes an exception to the Judgment and Order
passed by the School Tribunal dismissing the petitioner's appeal for
challenging the termination of his services. The petitioner's services
were terminated based on an inquiry report holding the petitioner guilty
of misconduct towards a female minor student and an allegation
involving moral turpitude.
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2. Learned counsel for the petitioner submitted that there was
prosecution lodged against the petitioner under the provisions of the
Protection of Children from Sexual Offences, Act, 2012. However, the
petitioner has been acquitted from the said prosecution. The
statements recorded in criminal prosecution and the statements in the
inquiry proceedings indicate that there were contradictions in the
statements made by the witnesses in support of the allegations made
against the petitioner. The contradictions in the statements relied upon
by the management have not been appreciated by the Tribunal. The
petitioner has been in service since the year 2004 and he has an
unblemished career. The penalty imposed on the petitioner is harsh
and he should have been given an opportunity for accepting voluntary
retirement from service.
3. Learned counsel for the petitioner further raises objections on
the reasons recorded by the Tribunal for dismissing the appeal of the
petitioner. He relied upon an earlier order passed by the Tribunal by
which the appeal of the petitioner was partly allowed and the
termination dated 23rd April 2016 was set aside. By the said order, the
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matter was remitted back to the inquiry committee for fresh inquiry
from the stage of issuing witness summons. Though the petitioner had
submitted a list of 4 witnesses, the said witnesses were not examined,
and only two were examined in the inquiry proceedings. The petitioner
was unable to put forth his case due to the non-examination of the
witnesses. The petitioner was not able to support his defence for want
of non-examination of the witnesses. The learned counsel for the
petitioner thus submitted that the order passed by the Tribunal is
without appreciating the contradictions in the statements made by the
witnesses against the petitioner. Hence, he submits that the petition
requires consideration as a harsh penalty is imposed on the petitioner.
4. The learned counsel for the petitioner also relied upon the
observations made by the Tribunal in paragraph 60 of the impugned
Judgment and submitted that the learned Presiding Officer has
recorded that there is no substance regarding the allegations made
against him of intentionally molesting the female student and by relying
upon the same evidence has also accepted the findings recorded in
inquiry proceedings whereby the petitioner is held guilty of misconduct
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against a female student. He thus submitted that the petition would
therefore require consideration.
5. I have perused the record. Considered the submissions made on
behalf of the petitioner. A perusal of the earlier Judgment of the
Tribunal passed on 24th April 2017 indicates that the matter was
remitted to the inquiry committee for fresh inquiry from the stage of
issuing witness summons. After the matter was remitted back, the
inquiry was conducted by examining the witnesses. The impugned
Judgment indicates that witness summons were issued by the inquiry
committee to the witnesses named by the petitioner. The witness
summons were duly received by them. One of the witnesses replied in
writing that she was not an eyewitness of the alleged incident and
therefore she did not wish to get involved in the matter. So far as other
witnesses are concerned, one of them whose examination was sought
for by the petitioner informed in writing that no incident had occurred in
his presence, hence, he would not appear before the inquiry
committee. Thus, both witnesses refused to depose in favour of the
petitioner. The remaining two witnesses appeared before the inquiry
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committee and the petitioner was allowed to examine them.
Accordingly, the petitioner examined said witnesses, and findings were
recorded by the inquiry committee holding the petitioner guilty of the
charges alleged against him. The Tribunal after going through the
record of the inquiry committee has held that the findings of the
majority members of the inquiry committee have held the appellant
guilty. Thus, the tribunal has held that the inquiry conducted was fair
and proper.
6. The School Tribunal has in detail discussed the proceedings of
the inquiry committee and the submissions recorded before the inquiry
committee. The Tribunal has in detail discussed the submissions made
on behalf of the petitioner. The Tribunal in paragraph 60 has referred
to the evidence as well as conclusions of the inquiry committee with
regard to the conduct of the petitioner. The Tribunal has thus held that
there was ample evidence on record based on which the majority of
members of the inquiry committee held the appellant guilty of
misconduct and allegation involving moral turpitude. The allegation
against the petitioner of his misconduct towards a female student is
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dealt with by the Tribunal in paragraph 63 of the impugned Judgment
which reads as under:
"63. However there was clinching, reliable and inspiring
evidence before the inquiry committee in the form of oral
evidence of two victim: girls i.e. Ms. A and Ms. B that on
30.09.2013 appellant while taking P.T. examination at
P.T. hall of the Respondent No. 2 school had stated to
MW-2 Ms. A that he would remove her cloths, make her
to stand before everyone and he also had pulled down
her frock from the shoulder. Oral evidence of these two
victim girls in respect of this incident is corroborated by
the FIR lodged by Ms. A with Nehru Nagar Police Station
and by their written complaints, which were filed before
the inquiry committee. Further the conduct of victim girls
to orally complaint to the MW-3 Shashikala Atrade the
then supervisor on the same day and the conduct of the
parents of those two victim girls to come to the school on
the next day further probabalizes the happening of the
incident. Therefore the on the basis of preponderance of
the probability the alleged incident dt. 30.09.2013
wherein the appellant while taking P.T. examination at
P.T. hall of the Respondent No. 2 school had stated to
MW-2 Ms. A that he would remove her cloths, make her
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to stand before everyone and he also had pulled down
her frock from the shoulder, stands proved. Therefore
there was ample evidence before the majority members
of the inquiry committee to hold appellant guilty for this
misconduct."
7. Learned Tribunal after appreciating evidence regarding aforesaid
misconduct has also discussed the decisions of the Hon'ble Supreme
Court relied upon in support of the action of the management. The
tribunal has appreciated the well-established principles of law
regarding the disciplinary action by the management and the scope of
criminal prosecution.
8. Thus, by a well-reasoned Judgment, the Tribunal has concluded
that there is nothing on record to show that the punishment of
termination imposed on the petitioner was disproportionate
punishment considering the petitioner's conduct with the minor female
student. The allegations against the petitioner and the conduct of the
petitioner are held to have been proved and he is found guilty of
misconduct and moral turpitude as defined under Rule 28(5) (a) and
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(b) of the Rules framed under The Maharashtra Employees of Private
School (Conditions of Service) Rules 1981 ("said Rules").
9. Under the said Rules "Moral Turpitude" includes immodest or
immoral behaviour with a female student and any other act of similar
nature. In the present case though the petitioner is acquitted from the
criminal prosecution, in view of the seriousness of the charges the
management found it fit to hold an inquiry. The rules of appreciating
the evidence and the burden of proof in criminal prosecution cannot be
equated with disciplinary inquiry. In the present case, it is not the
petitioner's contention that he is honourably acquitted from the criminal
case. Thus, the petitioner's acquittal by the court of competent
jurisdiction in criminal proceedings would not absolve the petitioner
from liability under the disciplinary jurisdiction. After following the due
procedure, the inquiry was completed and the petitioner on being
found guilty of misconduct and moral turpitude as defined under the
said Rules, the management has imposed the penalty of termination
from services as permissible under the said Rules. In allegations
involving moral turpitude, it is important to take into consideration the
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high standard of behaviour expected from a teacher. The relationship
between a teacher and a student holds high value in our society. In the
present case, considering the seriousness of the charges against the
petitioner as discussed above the interference in the order of
punishment by the management as affirmed by the Tribunal does not
warrant any interference. I do not find any error or any illegality in the
reasons recorded in the impugned judgment and order. Hence, I do
not see any ground warranting intervention by invoking powers under
Article 227 of the Constitution of India.
10. Petition is devoid of any merits. For the reasons recorded above,
the petition is dismissed.
[GAURI GODSE, J.]
Signed by: Iresh S. Mashal
Designation: PS To Honourable Judge
Date: 27/03/2024 10:12:03
